Combating Migrant Smuggling in Switzerland: Strategic Milestones since 2006
A number of important measures introduced over the past few years have improved the basic conditions for combating smuggling in human beings.
- On March 1, 2006, a cooperation agreement between Switzerland and Europol became effective. This agreement provides for the mutual exchange throughout Europe of strategic, operational, and specialized information on migrant smuggling.
- On January 1, 2008, the revised Foreign Nationals Act (FNA; SR 142.20) became operative. This act provides for additional and tighter provisions on the elements constituting migrant smuggling. The aggravated crime of encouraging for financial gain unlawful entry into and stay in Switzerland was previously punishable with imprisonment of up to three years and was thus considered a misdemeanor; under the new act the punishment is custodial sentence of up to five years, making the crime a felony (Art. 116(3) FNA). Also, facilitating or assisting a person’s illegal entry, departure or stay in Switzerland has become punishable. The penalty and monetary fine for employers who employ a foreign national without a permit (Art. 117 FNA) have also been increased. Furthermore, deceiving the authorities for the purpose of entering, staying in, or transiting Switzerland illegally (Art. 118 FNA) have become punishable offences. And deceiving authorities for a financial gain, for example by arranging fictitious marriages against payment, is considered an aggravated crime and is now punishable with up to five years imprisonment (Art. 118(3) FNA). These aggravated forms of migrant smuggling (Art. 116(3) and Art. 118(3) FNA) were also introduced into the list of crimes contained in the Federal Act on the Surveillance of Postal and Telecommunications and the Federal Act on Covert Investigations. The provisions for postal and telecommunications surveillance as well as covert investigations in connection with aggravated forms of migrant smuggling have now been transferred to the Swiss Code of Criminal Procedure (CCP), which came into force on 1 January 2011.
- The Schengen Association Agreement, concluded between the European Union and Switzerland, took force in December 2008. The signing of this agreement was a prerequisite to Switzerland's joining the Schengen area and has major implications on domestic security. Changes directly concern the fight against cross-border crime, in particular the smuggling of illegal migrants. The agreement resulted in the abolishment of systematic border controls of people traveling from a Schengen state to Switzerland and the other way round (Schengen internal borders). While border control has been abolished, mobile police searches involving spot checks may be carried out even in the absence of a concrete suspicion or incident. What is more, steps are being taken to improve international judicial and police cooperation to combat crime: Controls at external Schengen borders (international Swiss airports are considered external Schengen borders) are now much tighter than before. In addition, cross-border police cooperation has been stepped up, for example by joining the Schengen Information System (SIS), a databank network for conducting searches throughout Europe. Last but not least, legal assistance procedures have become streamlined.
- Switzerland and the European Union signed a supplementary agreement in Brussels in September 2009, governing the details of Switzerland's participation at the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, or Frontex for short. Participation in Frontex activities is not compulsory and is subject to Switzerland's interests and resources. Based on this Frontex agreement, the European Union may request Swiss border guards to be assigned for duty at the European Union's external borders.
- On January 1, 2010, another essential legal instrument of cooperation became operative: the Federal Act on the Information Exchange between the Prosecuting Authorities of Switzerland and Those of the Schengen States. This act is supposed to streamline the exchange of information appropriate to prevent or prosecute crimes such as migrant smuggling.
- On January 1, 2011, Article 116 paragraph 1abis of the Foreign Nationals Act entered into force. Under this provision, any person who from within Switzerland facilitates the unlawful entry or departure or the unlawful period of stay in a Schengen State of a foreign national is liable to prosecution, even if the smuggled person never enters Swiss territory. The amendment is based on the EU directive for Schengen Member States defining the facilitation of unauthorised entry, transit or residence.
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